Pennsylvania Co. v. Horton

• Citation: 31 N.E. 45,132 Ind. 189
• Parties: Pennsylvania Co. v. Horton.
• Decision Date: 30 April 1892
• Court: Supreme Court of Indiana

132 Ind. 189

31 N.E. 45

Pennsylvania Co.

v.Horton.¹

Supreme Court of Indiana.

April 30, 1892.

Appeal from circuit court, Porter county; E. C. Field, Judge.

Action by Harvey Horton against the Pennsylvania Company for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.Allen Zollars, for appellant. E. D. Crumpacker, for appellee.

MILLER, J.

This action was brought to recover for a personal injury suffered by appellee on the 13th of November, 1884, at a street crossing in Warsaw, Kosciusko county, by collision with the engine of a passenger train of cars running on the Pittsburgh, Ft. Wayne & Chicago Railway. At the time of the injury the appellee, as alleged in the complaint, was driving a horse and wagon along Washington street, in Warsaw, from the north towards the south. It is further alleged that the railway crossed the street on an embankment 12 feet high, maintained by the appellant; that the approaches to the track were steep and narrow, and that passengers on the street could with difficulty see approaching trains until they reached the top of the embankment at said crossing; that a side track was maintained by appellant along the north side of its main track across Washington street, and extended east and west therefrom a distance of 100 yards, and that adjacent to appellant's right of way, on the west side of Washington street, a large sawmill, sash factory, and manufactory of wooden wares was located, which, when in operation, made a noise so similar to that of an approaching train of cars that it was difficult to distinguish the one from the other, but that the ringing of a bell or sounding of a whistle could have been distinctly heard; that at the time of the injury appellant negligently permitted its freight cars to stand all day on said side track and upon and into Washington street, and leaving only 15 feet between its cars for passengers and teams to pass along said street and on its track, although the street was open and used by the public to the width of 80 feet; that Warsaw was an incorporated city at the time of, and for a long time prior to, the injury, and by an ordinance duly passed by the common council, and then in force, prohibited steam cars and locomotive engines within said city from moving at a greater rate of speed than five miles an hour; that at the time of his injury the appellee was lawfully passing along Washington street from the north to the south, driving a horse, and was about to cross appellant's track where it crossed said Washington street, being a public street and in much used by the public, and that by reason of said embankment, and its steep and narrow approaches, and the freight cars standing upon the side track and in said street obstructing the appellee's view of the main track, he was unable to see an approaching train passing westward along the main track, and by reason of said mill and factory being in action he was unable to see and hear said train approaching, and while so carefully passing along said street, and about to cross the railway track, and carefully seeking to avoid danger from any engine and cars, and without fault on his part, he was run into by a locomotive and train of cars of appellant, passing along the main track from the east to the west, unlawfully, carelessly, and running at the rate of 25 miles per hour, without ringing the bell or sounding the whistle within 100 yards to the east of said street crossing; that by reason of the foregoing premises the appellee was wholly unaware of the approach of the train until he was struck by the same, and violently thrown from his wagon, and his arm and leg broken; and all without fault or negligence on his part.

A demurrer was overruled to the complaint, exception taken, and the ruling is assigned as error. The counsel for appellant do not assert that the complaint does not sufficiently charge negligence on the part of the defendant, but insist that the facts stated show that the appellee was, at the time of his injury, guilty of contributory negligence. A general averment that the injury happened without the fault or negligence of the plaintiff is sufficient, unless it appears from other more specific averments that he was in fact negligent. The complaint charges, in effect, that the crossing was a dangerous one; and, while it is incumbent upon a traveler in approaching such a crossing to use care and caution reasonably commensurate with the known or apparent danger to be apprehended, it is not necessary to set out affirmatively all the precautions taken to avoid injury. The general allegation that the injury occurred without his fault or negligence is all that is necessary. We find no averment in the complaint inconsistent with the statement that he was without fault. If the defendant desired a more particular and definite statement of the facts, his remedy, if any, was a motion to compel the plaintiff to make the complaint more specific. Pennsylvania Co. v. O'Shaughnessy, 122 Ind. 588, 23 N. E. Rep. 675; Railway Co. v. McCartney, 121 Ind. 385, 23 N. E. Rep. 258; City of Anderson v. East, 117 Ind. 126, 19 N. E. Rep. 726; Railway Co. v. Crist, 116 Ind. 446, 19 N. E. Rep. 310; Railway Co. v. Walker, 113 Ind. 196, 15 N. E. Rep. 234.

The appellant insists that the court erred in giving the first instruction to the jury. The portion of this instruction objected to is as follows: “If you find from the evidence that the view of the approaching train was obstructed by buildings, trees, and cars on defendant's railroad at such crossing to a...